O’Connell on Kwoka on FOIA Commercialization (AdLaw Bridge Series)

With several paper deadlines over the last two weeks (and next two weeks), the AdLaw Bridge Series has been a bit neglected.* But I wanted to quickly highlight a terrific article, which Jotwell has more fully reviewed. Last week over at Jotwell, Anne O’ConnellreviewedFOIA, Inc. by Margaret Kwoka, which was published in the Duke Law Journal.

Here’s a summary of the paper from the SSRN abstract (the paper is available here):

Government transparency is imagined as a public good necessary to a robust democracy. Consistent with that vision, Congress enacted the Freedom of Information Act (FOIA) to allow oversight and accountability of governmental activities, imagining the prime intended users to be journalists. But this democracy-enhancing ideal is at odds with FOIA’s reality: at some agencies, commercial—not public—interests dominate the landscape of FOIA requesters.

This Article provides the first in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: third-party oversight of governmental actors. It also reveals a cottage industry of companies whose entire business model is to request federal records under FOIA and resell them at a profit, which distorts the transparency system even further.

Counterintuitively, limiting commercial requesting will not solve this problem. Instead, this Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.

Entitled Disclosure about Disclosure, Professor O’Connell’s Jotwell review of the piece is worth a read (as is the article being reviewed). Here’s a preview of the review:

Margaret B. Kwoka’s forthcoming article, FOIA, Inc., in the Duke Law Journal already has a place in the policy discussions (and in the NY Times). It should also have a place in research and teaching in Administrative Law. I am a strong proponent of teaching something about FOIA in the core Administrative Law class, focusing on its potential use as an oversight mechanism and as an information tool in the many cases that are excluded by the Federal Rules of Civil Procedure and the presumption of regularity from discovery. I warn students, however, that they should not be swayed by tales of disinfecting sunlight, mentioning briefly old studies about the use of FOIA by private parties to get information about other private parties.

My warning has not been strong enough. From considerable original empirical work, Kwoka supports three important points. First, commercial requesters dominate in FOIA practice. Second, some of these requesters are taking information obtained from FOIA and making a profit selling the information. Third, the fees agencies take in pay only a small fraction of the costs of processing FOIA requests. (Kwoka also argues that these realities have disconcertingly crowded out media requesters—that’s a more contested and less interesting (to me) point, so I do not spend time on it here.)

FOIA, Inc. is a truly impressive empirical study, which involved reviewing over 30,000 FOIA requests. Professor O’Connell has a terrific summary of Professor Kwoka’s study, but the full article is also well worth a close read.

* Thanks to my research assistant Brooks Boron for helping me put together this post and get me a little more caught up on the AdLaw Bridge Series.

About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.